Port of Houston Auth. of Harris Cnty. v. Zachry Constr. Corp. · 2017-02-07 · Neutral As of:...

NeutralAs of: January 6, 2017 10:56 AM EST

Port of Houston Auth. of Harris Cnty. v. Zachry Constr. Corp.Court of Appeals of Texas, Fourteenth District, Houston

December 15, 2016, Opinion Filed

NO. 14-10-00708-CV

Reporter2016 Tex. App. LEXIS 13306 *

THE PORT OF HOUSTON AUTHORITY OFHARRIS COUNTY, TEXAS, Appellant v.ZACHRY CONSTRUCTION CORPORATIONN/K/A ZACHRY INDUSTRIAL, INC., Appellee

Prior History: [*1] On Appeal from the 151stDistrict Court, Harris County, Texas. TrialCourt Cause No. 2006-72970.Port of Houston Auth. v. Zachry Constr. Corp.,377 S.W.3d 841, 2012 Tex. App. LEXIS 6591(Tex. App. Houston 14th Dist., 2012)

Core Termsdamages, Contractor, cutoff, frozen, trial court,Submittals, wharf, liquidated damages, offset,subcontractor, harms, change order, pass-through, notice, parties, Documents, actualdamage, Conditions, contracts, losses,discovery, provisions, freeze, issues, fail tocomply, modifications, sections, trench,pleadings, dry

Case Summary

OverviewHOLDINGS: [1]-In a breach of contract actionfiled by a construction company against a cityport, the court held that the evidencesupported the jury's interpretation of thecontract that the frozen cutoff wall wasincluded in the company's chosen means and

methods of performing the work and that notall submittals under the contract were subjectto the revise and resubmit process; [2]-Thecourt held that a notice provision in thecontract was inapplicable because it appliedonly to "changes" in the contract, not to"breaches" of the contract, and thatinterpreting the provision as the portsuggested would result in it being void underTex. Civ. Prac. & Rem. Code § 16.071(a); [3]-Even if the trial court erred by excludingharm/loss evidence, the error was harmlessbecause the trial court performed a Tex. R.Evid. 403 balancing analysis.

OutcomeJudgment affirmed.

LexisNexis® Headnotes

Civil Procedure > ... > Standards of Review > SubstantialEvidence > Sufficiency of Evidence

HN1 In reviewing the legal sufficiency of theevidence, an appellate court views theevidence in the light most favorable to theverdict, crediting favorable evidence ifreasonable persons could, and disregardingcontrary evidence unless reasonable personscould not. The appellate court may not sustaina legal sufficiency, or "no evidence," pointunless the record demonstrates: (1) acomplete absence of a vital fact; (2) the court

Cite # 3, Report # 5, Full Text, of 32

is barred by the rules of law or of evidencefrom giving weight to the only evidence offeredto prove a vital fact; (3) the evidence to provea vital fact is no more than a scintilla; or (4) theevidence establishes conclusively the oppositeof the vital fact. If the evidence, viewed in thelight most favorable to the verdict, wouldenable reasonable and fair-minded people tofind the challenged fact, then the evidence islegally sufficient.

Contracts Law > Contract Interpretation > Intent

Contracts Law > Contract Interpretation > Ambiguities &Contra Proferentem

HN2 A court's primary concern wheninterpreting a contract is to ascertain and giveeffect to the intent of the parties as expressedin the contract. Contract terms are given theirplain, ordinary, and generally acceptedmeanings, and contracts are to be construedas a whole in an effort to harmonize and giveeffect to all provisions of the contract. Whethera contract is ambiguous is a question of law forthe court; when a contract is ambiguous, itsinterpretation becomes a fact issue for the juryto resolve.

Contracts Law > Contract Interpretation

HN3 A contract should be considered in itsentirety, with provisions harmonized so thatnone of them are rendered meaningless.

Contracts Law > ... > Damages > Types ofDamages > Consequential Damages

Business & Corporate Compliance > ... > Real PropertyLaw > Construction Law > Contractors & Subcontractors

HN4 The evidence must show that thedamages are the natural, probable, andforeseeable consequence of the defendant'sconduct. Moreover, the Court of Appeals ofTexas has recognized that a contractor isentitled to recover damages from an owner forlosses due to delay and hindrance of its work ifit proves: (1) that its work was delayed or

hindered, (2) that it suffered damages becauseof the delay or hindrance, and (3) that theowner was responsible for the act or omissionthat caused the delay or hindrance.

Contracts Law > Remedies > Damages

HN5 The Supreme Court of Texas explained inAmerican Airlines that Tex. Civ. Prac. & Rem.Code § 16.071 by its terms does not applywhen the notice to be given is not notice of aclaim for damages, but rather notice ofunauthorized transactions. The purpose of thisnotice requirement is to prevent furtherunauthorized transactions.


HN6 In construing a contract, forfeiture byfinding a condition precedent is to be avoidedwhen another reasonable reading of thecontract is possible.


HN7 A court avoids when possible a contractconstruction that is unreasonable, inequitable,and oppressive.


Business & Corporate Compliance > ... > ContractsLaw > Breach > Breach of Contract Actions

Business & Corporate Compliance > ... > ContractConditions & Provisions > Contracts Law > ContractConditions & Provisions

HN8 When an owner breaches a constructioncontract, it relinquishes its contractualprocedural rights concerning change ordersand claims for additional costs. In other words,breaching owners are precluded from invokingprocedural clauses to bar contractors' claimsfor damages.

Civil Procedure > Appeals > Standards of Review > Abuseof Discretion

Civil Procedure > Appeals > Standards ofReview > Reversible Errors

2016 Tex. App. LEXIS 13306, *1


Evidence > Admissibility > Procedural Matters > Rulings onEvidence

HN9 An appellate court applies an abuse ofdiscretion standard to the question of whethera trial court erred in an evidentiary ruling.Further, even if the trial court erred in itsevidentiary ruling, reversal is only appropriateif the error was harmful, i.e., it probablyresulted in an improper judgment.

Civil Procedure > Discovery &Disclosure > Discovery > Methods of Discovery

HN10 A party may request disclosure of thelegal theories and, in general, the factualbases of the responding party's claims ordefenses or the amount and any method ofcalculating economic damages. Tex. R. Civ. P.194.2(c), (d).

Civil Procedure > Discovery & Disclosure > Discovery

HN11 The party seeking to introduce theevidence bears the burden of establishinggood cause or lack of unfair surprise or unfairprejudice. Tex. R. Civ. P. 193.6(b). Finally, it iswithin the trial court's discretion to determinewhether the party offering the evidence hasabided by the appropriate disclosure rule.

Evidence > Admissibility > Procedural Matters > CurativeAdmissibility

Evidence > Relevance > Exclusion of RelevantEvidence > Confusion, Prejudice & Waste of Time

HN12 Even if a party opens the door torebuttal evidence, the trial judge still has thediscretion to exclude the evidence under Tex.R. Evid. 403.

Civil Procedure > Judgments > Preclusion ofJudgments > Law of the Case

HN13 Under the law of the case doctrine, adecision rendered in a former appeal of a caseis generally binding in a later appeal of thesame case.

Civil Procedure > Pleading & Practice > Pleadings

HN14 The purpose of pleadings is to giveadversaries notice of each party's claims anddefenses, as well as notice of the relief sought.Generally, in the absence of specialexceptions, a petition will be construed liberallyin favor of the pleader.

Business & Corporate Law > AgencyRelationships > Authority to Act > Actual Authority

Business & Corporate Law > AgencyRelationships > Authority to Act > Apparent Authority

HN15 The distinguishing factor between actualand apparent authority is to whom suchauthority is communicated: an agent'sauthority to act on behalf of a principaldepends on some communication by theprincipal either to the agent (actual or expressauthority) or to the third party (apparent orimplied authority).


HN16 Texas recognizes pass-through claims.Consequently, if the contractor is liable to thesubcontractor for damages sustained by thesubcontractor, pursuant to a pass-throughagreement the contractor can bring an actionagainst the owner for the subcontractor'sdamages. If the owner contests thecontractor's pass-through suit on grounds thatthe contractor is not liable to the subcontractorfor the claimed damages, the owner bears theburden of proof.


HN17 A general contractor's decision to hire asubcontractor to perform work necessitated bythe owner's breach does not preclude thecontractor from recovering the cost for the sub.Otherwise, the owner could receive a windfallbecause the subcontractor lacked privity withthe owner and the contractor lacked standing

2016 Tex. App. LEXIS 13306, *1


to sue the owner for damages suffered by thesubcontractor.


HN18 If the owner disputes that therequirement of continuing liability has beenmet, it bears the burden of proving, as anaffirmative defense, that the pass-througharrangement negates the contractor'sresponsibility for the costs incurred by thesubcontractor.


Governments > Local Governments > Claims By & Against

HN19 Governmental immunity does not barthe pass-through claim of the subcontractor.


Governments > Local Governments > Claims By & Against

HN20 Just as it is inconsistent with thepurpose of Tex. Loc. Gov't Code Ann. §271.152 to construe it to deny waiver toassignees of those who enter into contractssubject to subchapter I, so is it inconsistent todeny waiver to pass through claims brought bya contractor against a local governmentalentity on a subcontractor's behalf. To holdotherwise would subject subcontractors to thesame risk of non-redressable breach thestatue sought to eliminate, resulting insubcontractors suffering the same problemsonce suffered by general contractors prior tothe enactment of § 271.152.

Counsel: For Appellant: David E. Keltner,FORT WORTH, TX.; Marie R. Yeates,HOUSTON, TX.

For Appellee: Douglas W. Alexander, AUSTIN,TX.; Jennifer Horan Greer, Robin C. Gibbs.HOUSTON, TX.

Judges: Panel consists of JusticesChristopher, Boyce, and McCally.

Opinion by: Sharon McCally

Opinion

OPINION ON REMAND

This contract dispute is before our court for asecond time, on remand from the TexasSupreme Court. See Port of Houston Auth. ofHarris Cty. v. Zachry Constr. Corp., 377S.W.3d 841, 844 (Tex. App.—Houston [14thDist.] 2012), rev'd, Zachry Constr. Corp. v. Portof Houston Auth of Harris Cty., 449 S.W.3d 98,101 (Tex. 2014). Zachry ConstructionCorporation n/k/a Zachry Industrial, Inc.(Zachry) sued the Port of Houston Authority ofHarris County, Texas (the Port) for breach ofcontract. Following a three-month jury trial, thetrial court signed a final judgment awardingZachry damages of $19,992,697, plus pre-andpost-judgment interest. On remand from theTexas Supreme Court, numerous challengesto the trial court's judgment remain. We affirm.

I. Background

In 2003, the Port solicited bids to construct awharf at the Bayport Ship Channel. The wharfconsisted of five sections, each approximately330 feet in length. Zachry's bid proposedbuilding the wharf "in the dry" by using a U-shaped, frozen earthen wall to seal out waterfrom Galveston Bay from the construction site.Zachry proposed to freeze the wall by sinking100-foot pipes into the wall and circulatingchilled brine through the pipes. Then, Zachrywould [*2] install drilled shafts into the ground,pour a concrete deck on top of the drilledshafts and dirt using the ground as the bottomof the concrete form, excavate the dirt underthe deck, and place revetment to stabilize theslope. After completing the wharf, Zachrywould breach the freeze wall, flooding the

2016 Tex. App. LEXIS 13306, *1


area, and remove the remainder of the freezewall so that ships would be able to dock at thewharf and unload their cargo.

An advantage of working "in the dry" instead of"in the wet" was that fewer "NOx" emissioncredits would be consumed. The Portaccepted Zachry's bid in large part because ofthe environmental benefits of using the freezewall. On June 1, 2004, Zachry entered into theBayport Phase 1A Wharf and DredgingContract (the Contract) with the Port for theconstruction of a 1,660-foot wharf. The Porthad concerns about the possible impact of thefrozen soil on adjacent structures but providedin the Contract that Zachry would be anindependent contractor and control the meansand methods, thus "insulating itself fromliability to which it would be exposed were itexercising control over Zachry's work." ZachryConstr. Corp., 449 S.W.3d at 102.

The Port designated Steve DeWolf as theChief Engineer for the project. [*3] The Portadditionally hired CH2M Hill as its constructionmanager; Andy Thiess was CH2M Hill'sengineer/construction manager, while Jeff Elywas CH2M Hill's engineer/design manager forthis project. Zachry designated Andy Andersonas its Project Manager and hired RKK—SoilFreeze Technologies to work on the freezewall. RKK in turn, hired Dan Mageau ofGeoEngineers, a geotechnical engineer, todesign the freeze wall.

The Contract provided a strict timeline.Specifically, Zachry was to completeconstruction of the wharf by June 1, 2006.Zachry was also to meet an interim deadline ofFebruary 1, 2006—Milestone A—by which aportion of the wharf would be sufficientlycomplete to allow delivery of large ship-to-shore cranes that were to be shipped fromChina. The Contract also provided thatZachry's sole remedy for any delay on theproject was an extension of time.

Nine months into the project, the Port realizedthat it would need longer berths toaccommodate the ships it expected to service.In March 2005, the Port decided to extend theoriginal wharf Zachry was constructing by 332feet. Zachry submitted price quotes for thewharf extension on April 13, May 18, and July11, and described its [*4] plan duringmeetings with, among others, Thiess and Ely.Zachry's proposal was based on using thefreeze-wall technology to add this additionalfootage to the wharf. Zachry had Mageaudesign a frozen cutoff wall, a perpendicularwall to the main freeze wall, to split the projectinto two phases: a west side including Area Aand an east side, as had been discussed atmeetings prior to Zachry's submission of itsprice quotes. On September 9, Zachry sent thefrozen cutoff wall design to the Port for"review," not "approval." The Port and Zachryexecuted Change Order 4 for the wharfextension on September 27, after Zachry hadsubmitted its frozen cutoff wall design to thePort. Change Order 4 extended the dates forMilestone A to February 15, 2006, and finalcompletion to July 15, 2006. Change Order 4incorporated Zachry's April 13 proposal asfurther modified by the May 18 and July 11proposals.

After entering into Change Order 4, the Portrefused to approve Zachry's frozen cutoff walldesign and sent Zachry a "revise andresubmit" response (R&R response). In thisR&R response, the Port noted preliminaryindications that the design may have anindeterminate effect on up to fourteenshafts [*5] and directed Zachry either to"present [an] alternative cutoff wall design" orto "present the Port of Houston with analternate means of mitigating risk" to theshafts. Ultimately, in late November 2005, afterfinding no viable alternative to the frozen cutoffwall design that would allow it to meet theContract deadlines, Zachry abandoned thefrozen cutoff wall and switched to an "in the

2016 Tex. App. LEXIS 13306, *2


wet" scenario. Zachry, working in the wet,managed to complete the Area A section ofthe wharf in time to accommodate the arrival ofthe shipment from China.

In late 2006, Zachry sued the Port for breachof contract, by failing to comply with ChangeOrder 4 and section 5.10 of the Contractthrough the Port's R&R response. Asdamages, Zachry sought the differencebetween the cost that Zachry would haveincurred had it been allowed to complete thewharf "in the dry" using the frozen cutoff walland the actual cost Zachry incurred incompleting the wharf "in the wet" without thefrozen cutoff wall. Zachry also sued the Portfor withholding liquidated damages for delaysin the amount of $2.36 million, and for thePort's withholding of $600,000 as a purportedoffset for alleged defective dredging. The Portfiled a [*6] counterclaim for attorney's feesunder section 3.10 of the Contract, whichprovided that Zachry was liable for the Port'sattorney's fees if Zachry brought a "claim"against the Port and "d[id] not prevail withrespect to such claim." Over two years aftersuing the Port, Zachry declared the wharfcomplete on January 26, 2009.

After a three-month trial, the case wassubmitted to the jury. The jury found that thePort had breached the Contract by failing tocomply with Change Order 4 and section 5.10,and found compensatory damages in theamount of $18,602,697 for the Port's breach ofthe Contract. These damages representedZachry's increased costs for switching toworking "in the wet." The jury did not find thatthe Port failed to comply with the Contract bywithholding $600,000 from the Port's paymenton the amounts invoiced by Zachry fordefective dredging.

The trial court instructed the jury that the Porthad not complied with the Contract by failing topay Zachry $2.36 million withheld as liquidated

damages. Thus, the jury needed only todetermine whether the Port was entitled tooffset; the jury found for the Port on an offsetdefense in the amount of $970,000 forZachry's defective work on the wharffenders. [*7]

In its final judgment, the trial court awardedZachry damages in the amount of$19,992,697.00 ($18,602,697.00 plus$2,360,000.00 in liquidated damages, less the$970,000.00 offset for the defective fenders),pre-judgment interest of $3,451,022.40, post-judgment on the total sum award of$23,443,719.00, and taxable costs. The trialcourt did not award the $600,000.00 withheldfor defective dredging that the jury refused toaward Zachry and did not award attorney'sfees to the Port.

On direct appeal, we held that the no-damages-for-delay provision of the Contractbarred Zachry's recovery of delay damages,that Zachry unambiguously released its claimsto $2.205 million of the liquidated damageswithheld, that the Port was entitled to the$970,000 found by the jury for the defectivewharf fenders, and that the Port was entitled toattorney's fees under the Contract. See Port ofHouston Auth., 377 S.W.3d at 850-51, 857-58,861. We reversed the judgment in favor ofZachry and rendered judgment for the Port.See id. at 865. However, the Supreme Court ofTexas reversed this court, holding that (a) theLocal Government Contract Claims Act waivedthe Port's immunity to suit—an issue that thiscourt had not reached; (b) the no-damages-for-delay provision of the [*8] Contract wasvoid and unenforceable as against publicpolicy due to the Port's arbitrary and capriciousconduct, active interference, bad faith and/orfraud; (c) Zachry did not release its claims tothe withheld liquidated damages; (d) theevidence was sufficient to support the jury'sfinding that the Port was entitled to the$970,000 offset for defective wharf fenders;

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and (e) the Port was not entitled to attorney'sfees. See Zachry Constr. Corp., 449 S.W.3d at113-14, 116-18, 119-20. The supreme courtremanded to this court to address the Port'sremaining issues.

The Port submitted supplemental briefing,urging the following issues it contends areoutstanding: (1) the liability findings fail as amatter of law; (2) the damages finding fails asa matter of law; (3) Zachry's "but-for" causationtheory fails as a matter of law;1 (4) Zachry'sR&R claim fails as a matter of law becauseZachry did not satisfy contractual conditionsprecedent; (5) the trial court wrongly excludedevidence of the Port's harms/losses caused by

1 The Port asserts it is challenging the factualsufficiency of the evidence, as well as the legalsufficiency, in its first three issues However, inits briefing, it urges repeatedly that there is "noevidence" to support these findings or that "asa matter of law" these findings fail. Thus,despite labeling its issues as challenges to thefactual sufficiency of the evidence, the Portprovides no argument in support of a factualsufficiency challenge. Indeed, the Portconsistently urges that Zachry's R&R claimshould be rendered. See Dongsheng Huang v.Riverstone Residential Grp. (Alexan PineyCreek), No.14-11-00009-CV, 2011 Tex. App.LEXIS 9432, 2011 WL 6003949, at *1 (Tex.App.—Houston [14th Dist.] Dec. 1, 2011, pet.denied) (mem. op.); see also Tex. R. App. P.38.1(i); Garden Ridge, L.P. v. Clear LakeCenter, L.P., No. 14-15-00695-CV,S.W.3d , 2016 Tex. App. LEXIS 10649,

2016WL 5497501, at *10 (Tex. App.—Houston[14th Dist.] Sept. 29, 2016, no pet. h.) ("ClearLake Center does not refer to the standard ofreview, cite any other legal authority, oranalyze the facts of the case under theappropriate legal authority in such a manner todemonstrate that the trial court committedreversible error."). We thus only consider thelegal sufficiency of the evidence to support thejury's findings as to breach, causation, anddamages.

Zachry; (6) the trial court wrongly excluded thisevidence of harms/losses even though Zachryopened the door to the evidence; (7) chargeerror in the fraud no-damages-for-delayexception requires a new trial; (8) the trial [*9]court improperly included apparent authorityinstructions in the jury charge; (9) becauseZachry's R&R claim should be rendered, thePort is entitled to attorney's fees as found bythe jury; and (10) Zachry erroneouslyrecovered purported "pass-through" damagessustained by a Zachry subcontractor.2 Weaddress these issues in turn.

II. Liability

The Port couches its first issue as a challengeto the sufficiency of the evidence to supportthe jury's findings of liability against the Port.Much of its argument concerns the jury'sallegedly erroneous interpretation of variouscontractual provisions. We thus begin ouranalysis of this issue by setting forth theappropriate standard of review for a legalsufficiency challenge and then turn to generalprinciples governing contract interpretation.Finally, we consider the sufficiency of theevidence to support the jury's finding inresponse to Question No. 2 that the Port failedto comply with section 5.10.

A. Standard of Review and Applicable Law

2 In a final issue, the Port asserts that the jury'sanswer of "No" to Question No. 9, which askedwhether the Port breached the Contract bywithholding $600,000 for defective dredging,was neither charge error nor against the greatweight of the evidence. Zachry did not respondor mention this cross-appeal issue in its post-remand supplemental briefing. Indeed, in itsprayer, it simply requests that the trial court'sjudgment be affirmed. It appears that Zachryhas abandoned its claim to this $600,000.Accordingly, this issue presents nothing for ourreview.

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HN1 In reviewing the legal sufficiency of theevidence, we view the evidence in the lightmost favorable to the verdict, creditingfavorable evidence if reasonable personscould, and disregarding contrary [*10]evidence unless reasonable persons couldnot. City of Keller v. Wilson, 168 S.W.3d 802,807 (Tex. 2005); United Nat'l Ins. Co. v. AMJInvs., LLC, 447 S.W.3d 1, 6 (Tex. App.—Houston [14th Dist.] 2014, pet. dism'd). Wemay not sustain a legal sufficiency, or "noevidence," point unless the recorddemonstrates: (1) a complete absence of avital fact; (2) the court is barred by the rules oflaw or of evidence from giving weight to theonly evidence offered to prove a vital fact; (3)the evidence to prove a vital fact is no morethan a scintilla; or (4) the evidence establishesconclusively the opposite of the vital fact. Cityof Keller, 168 S.W.3d at 810; United Nat'l Ins.Co., 447 S.W.3d at 6-7. If the evidence,viewed in the light most favorable to theverdict, would enable reasonable and fair-minded people to find the challenged fact, thenthe evidence is legally sufficient. See City ofKeller, 168 S.W.3d at 822; see also UnitedNat'l Ins. Co., 447 S.W.3d at 7.

Because the Port's first issue concerns thejury's findings based on its interpretation of theContract, we review the general principlesconcerning contract interpretation. HN2 Ourprimary concern when interpreting a contract isto ascertain and give effect to the intent of theparties as expressed in the contract. SeagullEnergy E & P, Inc. v. Eland Energy, Inc., 207S.W.3d 342, 345 (Tex. 2006); Bhatia v.Woodlands N. Houston Heart Ctr., 396 S.W.3d658, 669 (Tex. App.—Houston [14th Dist.]2013, pet. denied). Contract terms are giventheir plain, ordinary, and generally acceptedmeanings, and contracts are to be construedas a whole in an effort to harmonize and giveeffect to all provisions of the contract. ValenceOperating Co. v. Dorsett, 164 S.W.3d 656, 662(Tex. 2005); Bhatia, 396 S.W.3d at 669-70.

Whether a [*11] contract is ambiguous is aquestion of law for the court; when a contractis ambiguous, its interpretation becomes a factissue for the jury to resolve. Coker v. Coker,650 S.W.2d 391, 394-95 (Tex. 1983); seeDynegy Midstream Servs., Ltd. P'ship v.Apache Corp., 294 S.W.3d 164, 168 (Tex.2009) (stating that a contract is ambiguouswhen its meaning is uncertain and doubtful oris reasonably susceptible to more than oneinterpretation). Here, by instructing the jury tointerpret certain provisions of the Contract andChange Order 4, the court determined thatthese provisions were ambiguous and left theirinterpretation to the jury to resolve. SeeBowden v. Phillips Petroleum Co., 247 S.W.3d690, 705 (Tex. 2008) ("[B]y sending theinterpretation of the [agreements] to the jury,the trial court implicitly held the [agreements]were ambiguous.").

Finally, because the damages finding waspremised on the Port's liability under eitherQuestion No. 1, pertaining to Change Order 4,or Question No. 2, pertaining to section 5.10 ofthe Contract, we need only consider whetherthe Port failed to comply with either of theseprovisions. See, e.g., Soon Phat, L.P. v.Alvarado, 396 S.W.3d 78, 89-90 (Tex. App.—Houston [14th Dist.] 2013, pet. denied). Wethus focus on whether the Port failed to complywith section 5.10—the jury's finding inresponse to Question No. 2.

B. Application

We begin our analysis with the language of thecharge, which informs the sufficiency of theevidence to support the jury's finding. SeeOsterberg v. Peca, 12 S.W.3d 31, 55 (Tex.2000). In Question [*12] No. 2 the trial courtprovided the following question andinstructions to the jury:

Did the Port fail to comply with § 5.10 ofthe General Conditions?

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In answering this question, it is your duty tointerpret §§ 5.10 and 5.22 and the termscontained therein.

You must decide the meaning of theseprovisions of the Contract by determiningthe intent of the parties at the time of theagreement. Consider all the facts andcircumstances surrounding the making ofthe agreement, the interpretation placed onthe agreement by the parties, and theconduct of the parties.

In determining the meaning of theseprovisions, you may also consider a tradecustom or usage, if any, if you find thatsuch trade custom or usage existed.However, a trade custom or usage, if any,cannot vary, control, impair, restrict orenlarge the express language of theContract. A trade custom or usage exists ifit is a practice so generally or universallywell known and used in the industry thatthe parties are charged with knowledge ofits existence to such an extent as to raisethe presumption that the parties contractedwith reference to it.

Furthermore, in answering this question,you are instructed that nothing in § 5.41gave the Port the right [*13] to issues itsOctober 11, 2005 response to theSeptember 9, 2005 frozen cutoff walldesign.

Answer "yes" or "no."The jury answered "yes" to this question.

We next discuss the relevant provisions of theContract referenced in the charge. We beginwith section 5.10, which provided the Port withinsulation from liability:

5.10 Independent Contractor:

It is agreed between the parties that theContractor is and shall be an independentcontractor. Nothing in the Contract

Documents shall create a relationship ofemployer and employee or principal andagent between the Port Authority, on theone hand, and the Contractor or any of itsemployees, Subcontractors, Suppliers oragents of any thereof, on the other hand.Neither the Contractor nor any of itsemployees, Subcontractors, Suppliers oragents shall have the ability to bind orobligate the Port Authority for any purposewhatsoever.

The Port Authority shall not have the rightto control the manner in which or prescribethe method by which the Contractorperforms the Work.3 As an IndependentContractor, the Contractor shall be solelyresponsible for the supervision of andperformance of the Work and shallprosecute the Work at such time andseasons, in such [*14] order orprecedence, and in such manner, usingsuch methods as the Contractor shallchoose; provided, however, that the order,time, manner and methods of prosecutionshall be in compliance with Contractor'sStandard of Care and Work shall becompleted within the Contract Time and inaccordance with the Contract Documents.4

3 "Work" is defined by the Contract as:

The construction and services required bythe Contract documents, whethercommenced or not, or completed orpartially [*15] completed, and all labor,Materials, Equipment and servicesprovided or to be provided by theContractor to fulfill the Contractor'sobligations pursuant to the ContractDocuments. The Work may constitute thewhole or a part of the Project.

4 "Contract Documents" includethe Contract agreement signed by the PortAuthority and Contractor, Addenda (if any),Contractor's Bid/Proposal (including

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This section of the Contract clearlycontemplates that Zachry will control the"manner and methods" of its work. Indeed, theSupreme Court of Texas emphasized this factin its opinion: "The contract made Zachry anindependent contractor in sole charge ofchoosing the manner in which the work wouldbe conducted. . . . [section 5.10] benefitted thePort, insulating it from the liability to which itwould be exposed were it exercising controlover Zachry's work." Zachry Constr. Corp., 449S.W.3d at 102. The court noted controllingauthority, explaining that "'an owner oroccupier does not owe a duty to ensure thatindependent contractors perform their work ina safe manner. But one who retains a right tocontrol the contractor's work may be held liablefor negligence in exercising that right.'" Id. at102 n.4 (quoting Gen. Elec. Co. v. Moritz, 257S.W.3d 211, 214 (Tex. 2008)).

Yet despite this Contract provision, the Portcontends that it was entitled to reject Zachry'sfreeze-wall design and order Zachry to reviseand resubmit its proposed use of the frozencutoff wall under section 5.22 of the Contract.This section, excerpted next, required thatZachry "submit" designs or plans to the Portprior to commencing certain "Work" under thecontract:

5.22 Submittals to be Furnished by theContractor after Award

The Contractor shall prepare, or cause to

documentation accompanying theBid/Proposal and any post-Bid/Proposaldocumentation submitted and agreed to bythe Port Authority prior to commencementof Work), the Bonds, InsuranceCertificates, these General Conditions,Special Conditions, Specifications andDrawings, the Purchase Order, andModifications.

"Submittals" are explicitly excluded from theContract Documents, as noted infra.

be prepared, and submit to the personindicated below for [*16] such person'sreview (which review shall be conductedwith reasonable promptness so as not todelay the Work), complete design anddetailed Shop Drawings, Product Samples,and other pertinent information showing allmaterials and details of Work to beincorporated into the Project. Contractorshall submit such Submittals:

(a) if there is no Design Consultantresponsible for checking Submittals inconnection with the Work, to the ChiefEngineer with a copy of the transmittaltherewith to the Inspector; or

(b) if there is a Design Consultantresponsible for checking Submittals inconnection with the Work, to suchDesign Consultant with copies of thetransmittal letter transmitted therewithto the Chief Engineer and theInspector.

Submittals of a non-technical nature, suchas the Contractor's health and safety plan,spill prevention plan, and appointment ofContractor's superintendent, shall alwaysbe submitted to the Chief Engineer or suchother individual specified in the ContractDocuments as responsible for reviewingsuch documents.

***

The person reviewing the Submittal willreturn them to the Contractor marked toindicate whether the Contractor mayproceed with the Work based on the [*17]Submittal as is or with specified changes,whether the Contractor must makechanges to the Submittal and resubmit it,or whether the Submittal is rejected andthe Contractor must submit anotherSubmittal. The review and/or acceptanceof any Submittals shall not relieve the

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Contractor of its full responsibility forproper functioning, fit and conformity withthe Contract Documents.

***

Submittals are not and, notwithstandingany review and acceptance thereof by thePort or any Design Consultant, shall not beconstrued to be Contract Documents.

The purpose of review and acceptance ofSubmittals by the Port Authority or DesignConsultant is merely an effort on the partof the Port to determine whether theContractor is complying with therequirements of the Contract Documentsand shall in no way operate as a waiver ofany right of the Port or any obligation ofContractor hereunder, nor in any wayrelieve Contractor of any of its obligationshereunder. Review and acceptance ofSubmittals is not conducted for thepurpose of determining the accuracy andcompleteness of other details such asdimensions and quantities, or forsubstantiating instructions for installation orperformance of equipment [*18] orsystems, all of which remain theresponsibility of the Contractor as requiredby the Contract Documents. The PortAuthority's and/or Design Consultant'sreview and acceptance of the Contractor'sSubmittals shall not constitute approval ofsafety precautions or of any constructionmeans, methods, techniques, sequencesor procedures. The Port Authority's and/orDesign Consultant's review andacceptance of a specific item shall notindicate review and approval of anassembly of which the item is component.

(emphasis added).

As discussed next, we reject the Port'scontention that it was entitled to order Zachryto revise and resubmit the use of the frozencutoff wall to complete the expanded wharf as

contemplated by Change Order 4. Instead, weconclude that legally sufficient evidencesupports the jury's contract interpretation—i.e.,that the frozen cutoff wall was included inZachry's chosen means and methods ofperforming the work.

The parties agree that Zachry's original freeze-wall design was part of its excavation andshoring safety plan, which is covered bysection 4.07 of the Contract. This section,entitled "Health and Safety," provides:

The Contractor shall submit five (5) copiesof a health [*19] and safety plan for theWork to the Chief Engineer for review atleast forty-eight (48) hours prior tocommencing performance of any Work atthe site. Prior to beginning any field work atthe site, such plan shall be certified, bysignature of the SHSC [Contractor-designated Site Health and SafetyCoordinator], that it complies withapplicable portions of OSHA standards 29CFR 1910 and 29 CFR 1925. Such planshall provide, at a minimum, for safeworking practices, medical surveillance,engineering safeguards, personnelprotective equipment, training, safeoperating procedures, emergencyplanning, reporting and sanitation.Notwithstanding the Chief Engineer'sreview of the health and safety plan, theContractor, and not the Port Authority,shall be responsible for and have controlover ensuring the safety of its personneland its Subcontractors, agents,representatives and any other person whovisits the site in connection with the Work.

(emphasis added). Thus, the Port wasauthorized to "review" the plan, but this sectionre-emphasizes that it was Zachry, not the Port,that was responsible for—and had controlover—ensuring on-site safety. And in fact, thePort did not approve or reject the initial freeze-

2016 Tex. App. LEXIS 13306, *17


wall [*20] plan, which Zachry submitted to thePort as Zachry's shoring-safety-planaddendum to its previously filed health andsafety plan under Technical Specification02161 (T.S. 02161).5

Specifically, T.S. 02161 required Zachry to (1)submit its Proposed Trench Excavation andShoring Safety Plan and (2) submit allmodifications of the plan to the Port's ChiefEngineer, accompanied by the signedstatement of a Registered ProfessionalEngineer that the modification is "designed incompliance with the Contractor's Standard ofCare" and is in conformance with OSHA. ThePort counters that because T.S. 02161requires "submission" of modifications to thesafety and shoring plan, these "submissions"were subject to the "submittal" processprovided in section 5.22. Thus, the Port urgesthat it was authorized to order Zachry to reviseand resubmit its frozen cutoff wall plan, whichis exactly what it did when it returned Zachry'splan with the R&R response. We disagree withthe Port's proposition, as we explain next.

T.S. 02161, entitled "Trench Excavation andShoring Safety Plan," provides in pertinent partas follows:

C. Modifications

All modifications to the CONTRACTOR'STrench Excavation and Shoring SafetyPlan [*21] or the detailed plans andspecifications necessitated by the siteconditions, CONTRACTOR'S trenchconstruction means, methods, techniquesor procedures and CONTRACTOR'Sequipment to be used in construction ofproject facilities to be submitted to the

5 Instead, the record reflects that the plan,which had been approved by a TexasProfessional Engineer as required by T.S.02161, was provided to the Port and marked"Accepted for Records."

Chief Engineer. All such modifications tobe signed and sealed by a RegisteredProfessional Engineer licensed in the Stateof Texas and a statement provided statingthat the modified plan and/or the modifieddetailed plans and specifications for thetrench safety system are designed incompliance with the Contractor's Standardof Care and is in conformance withappropriate OSHA standards. Suchmodifications to CONTRACTOR'S planand/or the CONTRACTOR'S detailed plansand specifications for the trench safetysystem to thereafter be incorporated intothe Construction Contract.

***

1.3 SUBMITTALS

The successful Contractor to submit itsproposed Trench Excavation and ShoringSafety Plan after the Award of theContract. The plan to incorporate detailedPLANS and Specifications for a trenchsafety system conforming to OSHAstandards that accounts for project siteconditions, CONTRACTOR'S trenchconstruction means, methods, techniquesor procedures, [*22] the relationship ofspoil to edge of trench, andCONTRACTOR'S equipment to be used inconstruction of project facilities requiringtrench system(s). CONTRACTOR toprovide a statement signed and sealed bya Registered Professional Engineerlicensed in the State of Texas stating thatthe Trench Excavation and Shoring SafetyPlan and the detailed plans andspecifications for the trench safety systemare designed in compliance with theContractor's Standard of Care and inconformance with appropriate OSHAstandards. CONTRACTOR'S plan and thedetailed PLANS and SPECIFICATIONS forthe trench safety system to be

2016 Tex. App. LEXIS 13306, *19


incorporated into the bid documents andthe Construction Contract.

Thus, nothing in the plain language of T.S.01261 references section 5.22 or suggeststhat the Port could control Zachry's mannerand methods of ensuring the safety of theconstruction site.

However, the Port asserts that section 1.1(A)of T.S. 01261, which provides that it is "subjectto" the general and special conditions of thecontract, permitted it to order Zachry to reviseand resubmit the frozen cutoff wall plan underthe procedures provided in section 5.22 of theContract. But just as this provision is "subjectto" section 5.22, it is likewise "subject to"section 5.10, [*23] which prohibited the Portfrom exercising control over Zachry's "mannerand methods" of performing the work. And thefact that some provisions of the Contractallowed the Port to receive means-and-methods-related submittals does not meanthat the Port was authorized to exercisecontrol over Zachry's manner and methods.Instead, as the Port's Chief Engineer SteveDeWolf explained, there were "activities andother things that [Zachry] would not berequired to submit" under the revise-and-resubmit portion of section 5.22. Thus,according to DeWolf, Zachry "would notnecessarily have to submit [its] means andmethods as a capital S Submittal." DeWolftestified that the Port "would not want to beheld responsible for some issue that mightdevelop from [Zachry's] means and methods."DeWolf distinguished between "capital S"submittals subject to the revise and resubmitoption under section 5.22 and other, non-technical submittals that were not subject tothat option.

Indeed, DeWolf's explanation of the differencebetween "capital S Submittals" and other, non-technical submittals harmonizes sections 5.10and 5.22 so that neither is renderedmeaningless. See, e.g., J.M. Davidson, 128

S.W.3d at 229 (HN3 a contract should beconsidered in its entirety, with provisions [*24]harmonized so that none of them are renderedmeaningless). Thus, section 5.22 can be readas providing for two types of submittals: (1)technical, "Work"-related submittals (or, asDeWolf characterized them, "capital SSubmittals") and (2) other, non-technicalsubmittals. Under this reading of section 5.22,only technical, work-related "capital S"submittals would be subject to the revise andre-submit option contained therein. Thosesubmittals that related to Zachry's means andmethods of completing the work—including theuse of the freeze-wall technology—would beprovided to the Port for its review. In contrast,reading section 5.22 to permit the Port toexercise control over Zachry's means andmethods of performing the work would vitiatesection 5.10.

And if the Port exercised control over Zachry'shealth and safety plan, it risked losing theinsulation from liability that section 5.10 of theContract was explicitly designed to provide.See Zachry Constr. Corp., 449 S.W.3d at 102& n.4. The Port's witnesses testified that thePort did not approve or reject the originalfreeze wall to avoid claims it controlledZachry's methods and any attendant liability.The record supports an inference that neitherparty contemplated that the Port could approveor order Zachry to revise its [*25] main freeze-wall plan because Zachry built it and beganinstalling freeze-pipes before providing thePort the design. Further, DeWolf agreed thatthe freeze wall and the frozen cutoff wall"would not have been part of the permanentwork, so it would not be a capital S Submittal"subject to the revise and resubmit processcontained in section 5.22. De Wolf stated thatPort "would not have wanted to be in a positionof having approved means and methods." Andhe acknowledged that using the freeze-walltechnology "was Zachry's selected method ofperforming the construction." (emphasis

2016 Tex. App. LEXIS 13306, *22


added).6

All of this evidence supports the jury'sdetermination that, despite section 5.22, manyparts of Zachry's performance under theContract—including Zachry's submission of itsfrozen cutoff wall plan under T.S. 01261—were not subject to the "revise and resubmit"option therein Indeed, Zachry bid the entireproject, including Change Order 4, with theexpectation that it would use the freeze-wallmethodology; the Port selected Zachry for thisjob based on this innovative andenvironmentally friendly technique. As theTexas Supreme Court explained,

Zachry's plan was innovative. It would usesoil dredged from the channel to [*26]construct an 8-foot—wide earthen bermstarting from the shore at either end of theworksite, extending out toward the centerof the channel, then running parallel to theshore, forming a long, flat U shaped wall inthe channel around the construction area.Zachry would install a refrigerated pipe

6 The Port asserts that Zachry "absurdlyargues" that "no R&R response could bebased on risk to the Wharf's structuralintegrity." But the jury was tasked withinterpreting the Contract as a whole, includingwhether and to what extent Change Order 4impacted the "Work" under the Contract. Andthere was conflicting evidence concerning theimpact of Zachry's use of the frozen cutoff wallon the structural integrity of the wharf. In fact,there was some evidence from which areasonable juror could determine that the Portmanufactured concerns about the frozen cutoffwall's impact on the structural integrity of thewharf. By its answer to Question 1, the jurydetermined that the use of the frozen cutoffwall did not amount to "Work" under theContract. We will not revisit this issue becauseit rests on the jury's reasonable credibilitydeterminations. See City of Keller, 168 S.W.3dat 816-17, 819-20, 822.

system in the wall and down into thechannel floor that would carry supercooledbrine, freezing the wall to make itimpenetrable to the water in the channel.Zachry would then remove the water fromthe area between the wall and the shore.In this way, Zachry could work "in the dry",using bulldozers and other land equipmentfor the excavation and revetment work.Another advantage to this freeze-wallapproach was that it would lower dieselemissions and require fewer nitrous oxidecredits under environmental laws, givingthe Port more flexibility in otherconstruction projects. Zachry believed thisapproach would make the work lessexpensive and allow it to be completedmore quickly.

Id. at 102. Simply put, to permit the Port tolater modify Zachry's manner and methods ofperformance would contravene the clearinsulation from liability provided by section5.10. See id.

In sum, the record supports the jury'sdetermination [*27] that not all submittalsunder the Contract were subject to the reviseand resubmit process detailed in section 5.22.And there is more than a scintilla of evidencethat the frozen cutoff wall was Zachry's chosenmethod of completing the project (asexpanded by Change Order 4). Viewing theevidence in the light most favorable to thejury's finding that the Port failed to comply withsection 5.10, we conclude that reasonable andfair-minded people could find that the Port'sR&R order in response to Zachry's submissionof the frozen cutoff wall design violated section5.10 of the Contract. Thus the evidence islegally sufficient to support this finding. SeeCity of Keller, 168 S.W.3d at 822.

Because we determine that the evidence islegally sufficient to support the jury's findingthat the Port failed to comply with section 5.10,

2016 Tex. App. LEXIS 13306, *25


we overrule the Port's first issue.

III. Damages and Causation

In the Port's second and third issues, the Portchallenges the damages finding. The samestandard of review laid out above for legalsufficiency of the evidence applies to thisissue.

A. Damages

The Port urges in issue two that the jury'sdamages findings fail as a matter of law.7

7 The pertinent jury question and instructions isas follows:

What sum of money, if any, if paid now incash, would fairly and reasonablycompensate Zachry for its damages, if any,that resulted from the Port's failure tocomply?Consider the following elements ofdamages, if any, and none other.

A. The balance due and owed by thePort, if any, under the Contract,including any amount owed ascompensation for any increased cost toperform the work as a direct result ofPort-caused delays, andB. The amount owed, if any, foradditional work that Zachry wasdirected to perform by the Port inconnection with the Contract.

You may consider amounts, if any, owedas compensation for increased cost toperform the work as a direct result of Port-caused delays, if any, only if you find thatsuch increased costs were a natural,probable, and foreseeable consequence ofthe Port's failure to comply.

In determining the balance [*29] due andowed for the increased cost to perform thework under A (above), if any, and theamount owed for additional work under B(above), if any, you should include

These challenges are all based on the Port'sallegation that the testimony and methodologyof Zachry's [*28] damages expert, GaryDraper, was unreliable and thus no evidencebecause it was based on assumed facts thatwere contrary to the undisputed facts. SeeBurroughs Wellcome Co. v. Crye, 907 S.W.2d497, 499-500 (Tex. 1995) ("When an expert'sopinion is based on assumed facts that varymaterially from the actual, undisputed facts,the opinion is without probative value andcannot support a verdict or judgment.").

Draper provided a damages model to [*30] thejury that compared Zachry's actual costs to

Reimbursable Costs as defined in section1.1 of the Management ServicesAgreement (PX 643), incurred by NewZachry to perform Zachry's obligationsunder the Contract.You are instructed that Zachry was notrequired to take any of the followingactions to be able to recover damages forthe Port's failure to comply: (1) obtain awritten Construction Change Directive or afully executed Change Order from theChief Engineer under § 5.41 or under §5.52 to the extent it imposes requirementsconsistent with §5.41; or (2) provide noticethat a Contract interpretation by the Portconstituted a change to the Contract under§ 5.42 and that Zachry was entitled to anadjustment in the Contract Time and Price.You are instructed that you may consider§§ 5.41, 5.42, and 5.52 to the extent itimposes requirements consistent with§5.41, only in assessing a party's state ofmind.***Do not include in your answer any amountthat you find that the Port proved, by apreponderance of the evidence, thatZachry could have avoided by the exerciseof reasonable care.

The jury answered this question,"$18,602,697."

2016 Tex. App. LEXIS 13306, *27


complete the work "in the wet" with ahypothetical model of Zachry's costs had itbeen able to complete the work "in the dry" asZachry had planned and bid the project. Morespecifically, Draper (a) identified theconstruction activities the switch impacted; (b)as to each impacted activity, calculated thecost Zachry would have incurred working inthe dry as long as possible; (c) comparedthose costs to the costs Zachry reasonablyincurred as a result of switching to the wetearlier than it would have absent the Port'sbreach; and (d) excluded all other costs. Usingthis methodology, Draper calculated the costsof the switch to be approximately $27 million.After hearing the evidence, the jury awardedZachry $18,602,697, roughly two-thirds of thedamages supported by Draper's model.

We begin by noting that the Port ignores theevidence supporting Draper's model andinstead asserts Draper's dry schedule "variesdrastically" from "dozens of schedules" Zachryprepared around the time of the Port'srejection of the frozen cutoff wall method. Therecord reflects that Draper's model was basedon the use of a frozen cutoff wallmethodology; [*31] in contrast, the schedulesthe Port relies on were not based on a frozencutoff wall, as they were created after thePort's rejection of this process. Accordingly,these schedules did not project what Draperprojected—a completion schedule using afrozen cutoff wall. But despite this defect in thePort's general argument, we consider each ofthe Port's asserted "contrary facts" on whichDraper relied in turn.

1. Removal of Freeze Pipes from Berm

The Port claims that "Draper erroneouslyassumed it would take Zachry no time (andcost Zachry no money) to remove a thousandfreeze pipes from the thawed earthen wall(berm)." This faulty assumption, according tothe Port, means that Draper's testimony and

evidence was unreliable and no evidence ofZachry's damages. But the Port ignores theevidence supporting Draper's methodology.

First, Draper's "in the dry" model—consistentwith the evidence—provided for freeze-piperemoval to occur concurrently with bermremoval. The record reflects that Zachry's dryapproach was to remove the berm and freeze-pipes simultaneously and using the sameequipment. And the Port's own freeze-wallexpert at trial, Mageau, concluded at the timeof the R&R order that [*32] Zachry couldremove the freeze-pipes and perform theremainder of the work by mid-February to mid-March 2006 so the crane-ship could timelydock, even though he was aware of issueswith the freeze-pipes and other challengesZachry faced. In fact, Draper's schedule wasconsistent with the contemporaneous frozencutoff wall project schedule created by Zachryshortly before the Port rejected that method.

Second, the Port characterizes Draper'stestimony to suggest that Zachry could removeall the freeze pipes in one day. Draper did nottestify that all the freeze pipes could beremoved in one day; instead, he stated thatthe float time in his methodology would coverany time necessary to remove these pipes.Finally, the Port cross-examined Draper onthis point. The jury did not unquestioninglyaccept the testimony of Zachry's expert butreduced the amount of damages presumablybased on the challenges made by the Port toDraper's model. Cf. Am.'s Favorite ChickenCo. v. Samaras, 929 S.W.2d 617, 629 (Tex.App.—San Antonio 1996, writ denied)(upholding damages for lost profits in breachof contract case despite varying assumptionsin the parties' competing damages models).

For the foregoing reasons, we conclude thatDraper's damages model was not unreliablebased on the Port's freeze-pipe [*33] removalassertion; conflicting evidence was presented

2016 Tex. App. LEXIS 13306, *30


on this issue and the jury resolved the conflictsin favor of Zachry, although it reduced thedamages amount established by Draper'smodel. Cf. id.

2. Work on Sheet Pile for Frozen cutoff wall

The Port urges that, because Draper'sdamages model showed Zachry working oninstalling sheet pile8 for the frozen cutoff wallforty days before it actually began doing so,Draper's methodology is unreliable and noevidence of damages. In making thisargument, the Port relies on Anderson'stestimony referencing a November 15 list ofremaining tasks. Neither that list norAnderson's testimony references sheet-pile-installation timing for the frozen cutoff wall; thePort had rejected the frozen cutoff wall amonth earlier. Yet in its briefing, the Portinserts "frozen" into Anderson's testimony "thatthere was work to be done before we wereready for the [frozen] cutoff wall." Andersonwas discussing the status as of November15—when Zachry was considering thealternate cutoff wall's viability. The Port'sargument assumes that, after the Port'sOctober 11 rejection of the frozen cutoff wall,Zachry nonetheless proceeded as if Zachrywould still [*34] be using the frozen cutoff wall.

Further, even if Anderson were testifying thatwork remained as of October 11, he alsotestified it would take "a couple of days atbest." And although Draper's schedulesshowed sheet-pile installation starting October7, it was an "early start," meaning it could startlater with no impact on his analysis. Indeed,the float allotted for in Draper's scheduleallowed the sheet-pile installation to bedelayed until November 15 or later.

8 "Sheet pile"—steel sheets—would have linedthe frozen cutoff wall berm and also wouldhave composed Mageau's alternate cutoff wall.

Finally, as with the freeze-pipe removal issue,the Port raised this issue during cross-examination, and the jury's damages award--significantly less than Draper's modelsupported--accounted for any weight the jurygave it. Cf. id. In short, the Port's assertionregarding the sheet piles does not renderDraper's testimony unreliable and no evidence.

For the foregoing reasons, we overrule thePort's second issue in its entirety.

B. Causation

Next, in its third issue, the Port contends thatexpert testimony was necessary to prove thatthe Port's breach caused Zachry to abandonZachry's "in the dry" construction methods. Insupport of this proposition, the Port cites MackTrucks v. Tamez, 206 S.W.3d 572, 583 (Tex.2006). But Mack Trucks is not a breach ofcontract case; instead, [*35] it is a productsliability case in which the plaintiff failed topresent expert testimony regarding the causeof a fuel leak in a tractor's fuel system. See id.at 582-83.

Our research has not revealed a breach ofcontract case requiring expert testimony toestablish a causal link between the breach thatoccurred and the resulting damages.9 Becausethe Port has not cited, nor have we found, anycases requiring expert testimony to establishthat a party's breach of contract caused thedamages awarded by the jury, we decline toimpose such a requirement in this case. Cf.

9 Although numerous cases discuss thenecessity of expert testimony to provedamages in contract cases, these casesconcern the quantification of the damages,rather than the cause of damages. See, e.g.,Italian Cowboy Partners, Ltd. v. Prudential Ins.Co. of Am., 341 S.W.3d 323, 345 (Tex. 2011);Ginn v. NCI Bldg. Sys., Inc., 472 S.W.3d 802,842-43 (Tex. App.—Houston [1st Dist.] 2015,no pet.).

2016 Tex. App. LEXIS 13306, *33


Helena Chem. Co. v. Wilkins, 47 S.W.3d 486,504 (Tex. 2001) (concluding that, in a DTPAcase, non-expert testimony may providelegally sufficient evidence to establishcausation and exclude alternative causes).

Instead, HN4 the evidence must show that thedamages are the natural, probable, andforeseeable consequence of the defendant'sconduct. Mead v. Johnson Grp., Inc., 615S.W.2d 685, 687 (Tex. 1981). Moreover, thiscourt has recognized that a contractor isentitled to recover damages from an owner forlosses due to delay and hindrance of its work ifit proves: (1) that its work was delayed orhindered, (2) that it suffered damages becauseof the delay or hindrance, and (3) that theowner was responsible for the act or [*36]omission that caused the delay or hindrance.Shintech Inc. v. Grp. Constructors, Inc., 688S.W.2d 144, 148 (Tex. App.—Houston [14thDist.] 1985, no writ) (citing City of Houston v.R.F. Ball Constr. Co., 570 S.W.2d 75, 77 (Tex.Civ. App.—Houston [14th Dist.] 1978, writ ref'dn.r.e.)). Here, there is more than a scintilla ofevidence to support the finding that the Portwas responsible for the act that caused thedelay to Zachry's work. Anderson andgeotechnical expert Hugh Lacy testified that,once the Port rejected the frozen cutoff wall,Zachry had no viable alternative method tobifurcate the project and complete the wharf inthe dry in time for the crane ship to dock. Bothagreed that Zachry had to switch to working inthe wet far earlier than it otherwise wouldhave. In fact, the Texas Supreme Courtsummarized the evidence regarding the Port'sbreach and the resulting delay damages toZachry as follows:10

10 Although the sufficiency of the evidence wasnot before the Supreme Court on thisparticular issue, we note that the Court statedits background facts under a legal sufficiencystandard:

Nine months into the project, the Portrealized that it would need two 1,000-footberths to accommodate the ships itultimately expected to service. A sixth 332-foot section would have to be added to thewharf. As a practical matter, only Zachrycould perform the additional work, andZachry and the Port began discussions ona change order. To complete the twosections of the wharf needed by February2006, and to continue to work "in the dry",Zachry proposed to build another freeze-wall—a cutoff wall—though [*37] themiddle of the project, perpendicular to theshoreline out to the existing wall, splittingthe project into two parts. Zachry wouldfinish the west end where the ship fromChina would dock, remove the wallbarricading water from that area, thencontinue working on the east end "in thedry".

The Port had reservations about this plan.Near the shore, the cutoff wall would haveto be built through the area where piershad already been driven into the channelfloor. The Port's engineers were concernedthat freezing the ground near the piersmight destabilize them, weakening the

The evidence in this case was hotlydisputed at almost every turn. We do notpause in this rehearsal of the proceedingsto note each disagreement. In reviewingany case tried to a jury, we must view theevidence "in the light most favorable to theverdict"—in this case a verdict for thepetitioner—"crediting favorable evidence ifreasonable jurors could, and disregardingcontrary evidence unless reasonable jurorscould not" and so summarize the evidencein that light. Cruz v. Andrews Restoration,Inc., 364 S.W.3d 817, 819 (Tex. 2012)(citing City of Keller v. Wilson, 168 S.W.3d802, 807 (Tex. 2005)).

Zachry Constr. Corp., 449 S.W.3d at 101 n.3.

2016 Tex. App. LEXIS 13306, *35


wharf and making it unsafe. But the Portwas also concerned that if it rejectedZachry's plan, Zachry might simply refuseto undertake the addition of a sixth section.So the Port did not raise its concerns withZachry. Zachry, for its part, had alreadyidentified the issue, but its own engineershad concluded that any piers that might beaffected could be insulated from the frozenground. Change Order 4, using Zachry'sapproach to add a sixth section of thewharf at a cost of $12,962,800, wasfinalized September 27, 2005.

Two weeks later, the Port ordered Zachryto revise and resubmit its plans without thecutoff [*38] wall. The practical effect of thePort's order was to refuse to allowconstruction of the cutoff wall. Zachryprotested that, under Section 5.10 of thecontract, the Port had no right to determinethe method and manner of the work, butthe Port would not budge. Zachry's onlyoption was to finish the westmost sectionsin time for the ship from China to dock,then remove the wall altogether andcontinue to work "in the wet", which woulddelay completion of the project andincrease its cost.

Zachry Constr. Corp., 449 S.W.3d at 102-03(emphasis added).

Viewing the evidence in the light mostfavorable to the verdict, we conclude that thatthe evidence was legally sufficient to supportthe jury's verdict. Although the Port submittedevidence that tended to contradictZachry's [*39] evidence, there was "more thana mere scintilla" of evidence on which areasonable jury could find that the Port's failureto comply with the Contract resulted indamages to Zachry. We thus overrule Zachry'sthird issue.11

11 The Port further argues in this issue that

IV. Alleged Conditions Precedent

In its fourth issues, the Port contends thatZachry failed to comply with two provisions ofthe Contract that the Port urges wereconditions precedent—sections 5.41 and 5.42.As such, according to the Port, judgment in thePort's favor on Zachry's R&R claim must berendered. The trial court instructed the jury thatZachry did not have to comply with thesesections to recover damages; instead, the jurywas to consider sections 5.41 and 5.42 "only inassessing a party's state of mind."

CH2M Hill's Andy Thiess "issued" the R&Rresponse, which he lacked authority to do. ThePort cites special condition 12(d) of theContract, which provided that CH2M Hill, asthe Construction Manager of the project, didnot have the authority of the Port's ChiefEngineer and had "no authority to . . . changeany of the terms and conditions of theContract, including without limitation, issuingModifications . . . or Change Orders." But theR&R response is not a modification or changeorder, and nothing on the face of the R&Rorder indicates it was issued by Thiess.Instead, it bears the seal of the Port ofHouston. And under special condition 12(d),CH2M Hill was tasked with coordinating thepaper flow for the Project, including Submittalsand Change Orders. Zachry was required tosubmit paperwork to CH2M Hill, and CH2M Hillwas charged with managing the flow of thepaperwork to and from the appropriate Portpersonnel, including the Chief Engineer.CH2M Hill additionally was charged withconducting all pre-construction and progressmeetings, and it was during these progressmeetings that CH2M Hill and Zachry personneldiscussed the Port's R&R response to ChangeOrder 4. Further, we resolve the Port'scomplaint regarding the "apparent authority"instruction in the jury charge against the Portinfra in section VII of this opinion. Thus, thejury properly considered whether CH2M Hillhad authority to act on behalf of the Port asregards to the R&R response.

2016 Tex. App. LEXIS 13306, *37


Sections 5.41 and 5.42 set forth proceduresthat allowed the Port to make changes withinthe scope of the contract work duringperformance of the Contract. Section 5.41relates to "Changes or Modifications" throughchange orders, and section 5.42 concerns"Changed Conditions or ContractInterpretations." More specifically, section 5.41applies to "changes and modifications to theContract Documents within the general scopeof the Work," and requires a change order to"stipulate the Work to be performed" and "anydifference in the Contract [*40] Price." Section5.42,12 on the other hand, required five days'written notice of any "interpretation of theContract" by the Port that Zachry "believes . . .constitutes a change to the Contract," if Zachrybelieved it was entitled to an adjustment in theContract time or price. Under section 5.42, theChief Engineer's determination of whetherthere should be a "modification" or "equitableadjustment" was "final and conclusive," andZachry was forbidden from "begin[ning]performing that portion of the Work affected bysuch interpretation" before giving notice.

Zachry has never asserted that the Port, bydenying Zachry the use of the frozen cutoffwall as its means and methods of performingChange Order 4, effected "changes ormodifications" to the Contract or "interpreted"

12 Pre-trial, the Port unsuccessfully moved forsummary judgment on the ground thatZachry's claim for R&R damages was barredby this provision. Zachry, also pre-trial, soughtto invalidate section 5.42's notice requirementson the grounds that this section did not applyto Zachry's breach-of-contract claim and, evenif it did, it was invalid under Texas CivilPractice & Remedies Code section 16.071.The trial court agreed with Zachry anddetermined that section 5.42 was"inapplicable" to the facts of this case and"void" under section 16.071 of the CivilPractice & Remedies Code.

the Contract in a manner that constituted a"change" to the Contract as is provided for inthese sections. Rather, Zachry's case hingeson the proposition that the Port breached theContract by rejecting the frozen cutoff wall.Zachry did not seek the "difference in theContract Price" under section 5.41 or "anadjustment in the . . . Contract Price" undersection 5.42. Instead, Zachry sought, and thejury awarded, damages for the Port's breach ofthe Contract. We thus interpret [*41] theseprovisions as applying only to changes relatingto the "Work" under the Contract, not toZachry's methods and means, over whichZachry was explicitly in control under section5.10, as discussed supra.

Further, the Port's interpretation of section5.42 of the Contract would require us to readthis section as follows: "If the Contractorbelieves that any interpretation of the ContractDocuments by [the Port and its agents]constitutes a breach of the Contract, theContractor shall immediately notify the ChiefEngineer" in writing within five calendar daysafter the interpretation constituting the breach.Such a reading of this provision would runafoul of Texas Civil Practice & Remedies Codesection 16.071, which provides:

A contract stipulation that requires aclaimant to give notice of a claim fordamages as a condition precedent to theright to sue on the contract is not validunless the stipulation is reasonable. Astipulation that requires notification withinless than 90 days is void.

Tex. Civ. Prac. & Rem. Code § 16.071(a).

The Port asserts that section 16.071 of theCivil Practice & Remedies Code does notapply to section 5.42 because it only "voidscontract provisions that require, as a conditionprecedent to suit, less than 90 days' notice of aclaim for damages." The Port urges that, underAmerican Airlines Employees Federal Credit

2016 Tex. App. LEXIS 13306, *39


Union v. Martin [*42] ,13 section 16.071 doesnot apply where the notice has some "otherpurpose, i.e., a purpose other than givingnotice of a claim for damages." But AmericanAirlines does not stand for a proposition sobroad; rather HN5 the Supreme Court ofTexas simply explained in American Airlinesthat "section 16.071 by its terms does notapply here, when the notice to be given is notnotice of a claim for damages, but rathernotice of unauthorized transactions. Thepurpose of this notice requirement, as we havediscussed, is to prevent further unauthorizedtransactions." 29 S.W.3d 86, 97 (Tex. 2000)(emphasis added).

Moreover, our interpretation of section 5.42does not render the provision meaningless orinvalid, as the Port argues, because not everyinterpretation of the Contract documents bythe Port would constitute a breach of thecontract. For example, if the Port specified thetype of a particular material to be used inbuilding the Wharf, such as a certain type ofconcrete, and Zachry believed that thisinterpretation of the Contract entitled it to achange in the Contract time or price, then thisprovision would have provided a valid meansof quickly resolving the issue.14 Thus, in many

13 29 S.W.3d 86, 97-98 (Tex. 2000).

14 As another example, Zachry suggests in itsbriefing that section "5.42 would apply if thespecifications required 'steel,' and [the Port]interpreted that to mean galvanized steel, butZachry believed black steel complied."Because section 5.42 could have operatedvalidly in some situations, the "circularreasoning" problem identified in TennesseeGas Pipeline Co. v. Technip USA Corp., No.01-06-00535-CV, 2008 Tex. App. LEXIS 6419,2008 WL 3876141, at *23 n.11 (Tex. App.—Houston [1st Dist.] 208, pet. denied) (mem. op.on reh'g), does not arise in this case. In otherwords, section 5.42 is not renderedmeaningless under our interpretation. See id.

circumstances, this provision would not violatesection 16.071 of the Civil Practice &Remedies Code. Conversely, here, Zachryhas [*43] never claimed that the Portinterpreted the Contract in such a manner thatZachry was entitled to an adjustment in theContract time or price. Instead, Zachry hasurged that the Port breached the Contract bycontrolling Zachry's methods and means—i.e.,by rejecting Zachry's use of the frozen cutoffwall. If section 5.42 operated, as the Porturges, to require Zachry to provide five days'written notice of this claim for breach anddamages, it would be void under section16.071 of the Civil Practice & Remedies Code.Indeed, interpreting section 5.42 as the Portsuggests would convert nearly any breach ofthe Contract by the Port into a "change"subject to the Chief Engineer's "final andconclusive" determination as to whether thePort had properly interpreted the Contract andwhether Zachry was entitled to a change in theContract time or price.15

We conclude that section 5.42's noticeprovision is inapplicable under thecircumstances of this case as it applies only to"changes" in the Contract, not to "breaches" ofthe contract. See Criswell v. EuropeanCrossroads Shopping Ctr., 792 S.W.2d 945,948 (Tex. 1990) (HN6 "In construing acontract, forfeiture by finding a condition

("We will not construe a contract in a way thatrenders a provision meaningless.").

15 And the Port knew how to draft a provisiondetailing conditions precedent to suit. Insection 5.55 of the Contract, the Port detailedthe process of dispute resolution, explicitlystating, "Participation in non-binding mediationin accordance with this paragraph shall be acondition precedent to Contractor having theright to file any legal or equitable actionagainst the Port Authority or any of itscommissioners, officers, directors, employeesor agents." (emphasis added).

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precedent is to be avoided when anotherreasonable reading of the contract ispossible."). Further, interpreting thisprovision [*44] under the facts of this case asthe Port suggests would result in the provisionbeing void under the Civil Practice &Remedies Code. See Tex. Civ. Prac. & Rem.Code § 16.071(a); cf. Frost Nat'l. Bank v. L &F. Distribs., Ltd., 165 S.W.3d 310, 312 (Tex.2005) (per curiam) (citing Reilly v. RangersMgmt., Inc., 727 S.W. 2d 527, 530 (Tex.1987), and explaining HN7 we avoid whenpossible a contract construction that is"unreasonable, inequitable, and oppressive").

Finally, even if these sections applied to abreach-of-contract claim,HN8 "[w]hen anowner breaches a construction contract, itrelinquishes its contractual procedural rightsconcerning change orders and claims foradditional costs." Shintech, 688 S.W.2d at 151.In other words, breaching owners like the Portare precluded from invoking proceduralclauses to bar contractors' claims fordamages. See, e.g., West v. Triple B. Servs.,LLP, 264 S.W.3d 440, 446-50 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (30-daynotice requirement); Shintech, 688 S.W.2d at151 (written-notice requirement); N. Harris Cty.Jr. Coll. Dist. v. Fleetwood Constr. Co., 604S.W.2d 247, 254 (Tex. App.—Houston [14thDist.] 1980, writ ref'd n.r.e.) (change-orderrequirement); Bd. of Regents of Univ. of Tex.v. S & G Constr. Co., 529 S.W.2d 90, 96 (Tex.Civ. App.—Austin 1975, writ ref'd n.r.e.)(change-order requirement), overruled onother grounds by Fed. Sign v. Tex. S. Univ.,951 S.W.2d 401 (Tex. 1997).16 Thus, because

16 The Port argues that this line of cases doesnot apply if the contractor continued to performafter the breach. The Port is simply wrong; inall these cases, the contractors continued toperform after the defendants breached. See,e.g., N. Harris Cty. Jr. Coll. Dist., 604 S.W.2dat 254 ("At the point of the breach, when the

the Port materially breached the Contract, it isbarred from invoking sections 5.41 and 5.42 tobar Zachry's claims for damages.17

Under these circumstances, we overrule thePort's fourth issue.

V. Exclusion of Port's Evidence ofHarms/Losses

The Port asserts in its fifth issue that the trialcourt abused its discretion by excludingevidence of its harm and losses due toZachry's failure to perform in accordance withthe Contract. In its related sixth issue, the Port

College failed to change its specifications toconform to the actual soil condition, Fleetwoodwas given the choice of stopping work andrecovering under the contract or continuing towork and claiming damages caused by thebreach. Fleetwood chose to continue and suefor damages, and the College cannot nowinsist on enforcement of the claimsprovision."). None of the cases have beenoverruled on this basis.

17 The Port also includes a small subsection inthis portion of its argument relating to section5.08 of the Contract, which permitted Zachry torequest additional time in certaincircumstances. This section of the Port'sargument provides in toto as follows:

The court erred/abused its discretion byexcluding evidence that, despite the R&Rresponse, Zachry never exercised its §5.08right to seek more time to perform. Thisevidence went to causation; had Zachryviewed the R&R response as a breachcausing the switch [*45] to "in the wet,"Zachry would have invoked §5.08 andsought more time.

(record citations omitted). The Port has failedto "make a clear and concise argument for thecontentions made, with appropriate citations toauthorities and to the record." Tex. R. App. P.38.1(i). Thus, it has waived this sub-issue byinadequate briefing.

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contends that the trial court erred or abused itsdiscretion by continuing to exclude (as adiscovery sanction) a "subset of evidence" ofits harms and losses even after the court heldthat Zachry had "opened the door" to evidenceof these harms and losses. We begin with abrief overview of the pertinent facts.

A. Facts Pertinent to Exclusion of Port'sHarms/Losses

Zachry filed suit against the Port in 2006,seeking, among other things, the liquidateddamages the Port had withheld from Zachry.On June 3, 2009, the Port filed its thirdamended original answer and counterclaim. Atthat time, the discovery deadline had expiredon January 16, the pleading deadline hadexpired on January 23, and trial was set tobegin on July 20. In this pleading, the Port, forthe first time, alleged, in pertinent [*46] part,the following as a defense:

Zachry agreed to a Milestone A date andthe Final Completion date. Zachry agreedto liquidated damages in the event it failedto meet these dates. Zachry failed to meetthe Milestone A date and the FinalCompletion date. In addition, Zachry failedto properly perform Work and the PortAuthority had to pay another contractor tocorrect or mitigate harm caused byZachry's defective Work. The PortAuthority's withholding of monies frompayments to Zachry is supported byenforceable provisions of the Contract,including the right to withhold payments(Section 6.05 of the General Conditions),the right of offset (Section 6.17 of theGeneral Conditions),18 the right to

18 Section 6.17 states:

Offset:The Port Authority, without waiver orlimitation of any of its other rights or

liquidated damages (Section 5.05 of theGeneral Conditions), the right to actualdamages in lieu of liquidated damages(Section 5.06 of the General Conditions),19and the Specification and Proposal (settingforth the concept of reduction of thecontract price for late performance). Theliquidated damages withheld were areasonable forecast of just compensationbecause the Contract provided forliquidated damages in lieu of actualdamages and because the Port Authoritysustained actual damages in an amountthat was not disproportionate to the [*47]liquidated damages.20

remedies under this Contract andApplicable Law, shall have the right but notthe obligation to from time to time deductfrom any amounts due or owing by the PortAuthority to the Contractor or its surety anyand all amounts owed by the Contractor orits surety to the Port Authority.

19 This section provides that the agreed-toliquidated damages are the minimum amountof damages suffered by the Port: "If the PortAuthority suffers damages in excess of suchminimum amount due to the Contractor'sfailure to complete within the Contract Time,the Port Authority shall have the right torecover its actual damages." (emphasisadded).20 In contrast, in its second amended originalanswer, the Port had alleged more generallyas follows:

Zachry agreed to a Milestone A date andthe Final Completion date. Zachry agreedto liquidated damages in the event it failedto meet these dates. Zachry failed to meetthe Milestone A date and the FinalCompletion date. The Port Authority'swithholding of monies from payments toZachry is supported by enforceableprovisions of the Contract, includingthe [*48] right to withhold payments(Section 6.05 of the General Conditions),

2016 Tex. App. LEXIS 13306, *45


The next day, the Port filed its secondamended response to Zachry's request fordisclosure, in which it asserted that Zachrywas not entitled to recovery against the Portfor breach of contract because the Port "actedin accordance with the Contract provisions,including, but not limited to the right to withholdpayments (sections 6.05, 6.17, 5.05, and 5.06of the General Conditions)." The Port furtherrepeated the above allegations from itsamended petition.21

Zachry responded with an interrogatory onJune 11, asking the Port to quantify theseharms. The Port responded on July 24—Zachry's interrogatory deadline—byquantifying more than $8 million in allegedharms. Yet the Port did not disclose that itsought to offset these harms against Zachry'sdamages; instead, this interrogatory responsequantified harms in the context of the Port'sdisclosure that it "sustained actual damages inan amount that was not disproportionate to theliquidated damages." Later, in September, thePort increased its claimed harms/losses toaround $10.5 million but continued to makethis disclosure in the context of proportionalityto liquidated damages. The Port did not

the right of offset (Section 6.17 of theGeneral Conditions), the right to liquidateddamages and actual damages in lieu ofliquidated damages (Sections 5.05 and5.06 of the General Conditions), and theSpecifications and Proposal (setting forthliquidated damages and the concept ofreduction of the Contract price).

21 Meanwhile, Zachry had attacked the Port'swithholding of liquidated damages as aninvalid penalty when Zachry filed a motion forpartial summary judgment on that basis inDecember 2008. Although this motion waslater denied, the Port was on notice thatZachry would be seeking to invalidate thePort's withholding of liquidated damagesnearly eighteen months before the Port set outto quantify its alleged harms/losses.

disclose that it intended to submit theseharms/losses to the jury as an offset to reduceZachry's damages. In fact, the Port'sSeptember 17th draft jury [*49] charge did notseek any findings as to the Port's actualdamages for an offset defense to reduceZachry's damages award.

On September 29, 2009, the Port revealed thatit intended to seek its alleged $10.5 millionharms/losses as a defense to reduce anyjudgment in favor of Zachry.22 The next day,Zacry moved to strike the Port's defense andexclude any evidence in support of thesedamages. After a flurry of responses, replies,and hearings, on October 16, the trial courtgranted in part and denied in part Zachry'smotion to strike. In its five-page order, the trialcourt explained in detail its reasoning:

[The Port] only listed ANY amounts (otherthan the $600,000.00 dredging issue) of itsactual damages that it proposed to serveas an offset in late July 2009. However, thelegal theory under which those quantitieswere listed was ONLY the proportionalityof its liquidated damages offset claim toactual damages. Additionally, [the Port]had timely disclosed $600,000.00 in actualdamages much earlier as part of an offsetclaim pertaining to certain dredging costs.

To this day, [the Port] has not enunciatedin any discovery response any legal theorythat it was seeking to defensivelyoffset [*50] or recoup ANY actualdamages other than the $600,000.00amount. Zachry allegedly only learned of[the Port's] apparent attempt to inject first$8 million and then $10.5 million in actualdamages (as opposed to liquidateddamages) as a defensive claim for offsetinformally, and not through any

22 At that time, trial was set to begin onOctober 20.

2016 Tex. App. LEXIS 13306, *48


supplementation of discovery, such as asupplement to a request for disclosureunder Rule 194.2(c). The Court stated at ahearing that the surprise to Zachry was notthat [the Port] was seeking an offset, butthat it was seeking to offset a long list ofitemized damages as opposed toliquidated damages. It is important to note,again, that in quantifying its "harms" in July2009, [the Port] was not stating that itwould actually be seeking to recover thosequantities for those specific harms as anoffset.

***

[The Port] argues that this Court's March2009 ruling denying [Zachry's] motion forsummary judgment on the enforceability ofthe liquidated damages clause of thecontract excused it from pleading andenunciating in its disclosure responses thisalternate theory of actual damages. TheCourt wants to be fair, as always, but ifanything, the suggestion by Zachry by itsmotion that the liquidated damagesclause [*51] may not be enforceableshould have alerted [the Port] that itneeded to plead this theory and enunciateit in terms of the legal theory and amountsin its disclosure responses. Further, Zachryagain sought to eliminate the liquidateddamages claim by its Rule 166(g) Motionon or about July 31, 2009, and [the Port]still has not amended its Rule 194.2(c)disclosure response to enunciate an actualdamages theory of offset or recoupment,nor sought leave to do so, to the Court'sknowledge. [The Port's] inclusion, longago, of the $600,000.00 actual damagesfigure as part of its offset claim alsohighlights that [the Port] should haveincluded all of the other categories andquantities of offsets well before thediscovery cutoff.

***

The bottom line is that to inject $10.5million in actual damages or recoupmentwell after all discovery deadlines havepassed would dramatically change thelandscape of what promises to be alengthy and complicated trial. It is not fairto ask either side to engage in what theCourt perceives would be extensivediscovery (including document production,depositions, and potentially additionalexpert witnesses) on the evidentiary basesfor the amounts sought to be offset by [thePort]. [*52] The results of that discoverywill not be known until long after voir direand opening statements, and the trialCourt will not allow that much fluidity anduncertainty into this trial.

The trial court permitted the Port to offer thefollowing amounts and categories of damagesas potential offsets to any damages awardedto Zachry: (1) $600,000 for dredging; (2) "$1million or so" for damages to wharf fenders;and (3) "$25,000.00 or so" for "cleaning andgrubbing." The trial court excluded theremaining categories and evidence of offsetharms/losses the Port sought to introduce.

Later, during trial, testimony concerning anemail from Port personnel, which was admittedinto evidence, was adduced. For example,Zachry's Anderson testified regarding theemail and conversation he had with the Port'spersonnel. Anderson testified and a Port emailto the Port's Chief Engineer DeWolf stated thatthe Port would not charge Zachry theliquidated damages penalty "if no expense orloss" to the Port occurred. Anderson testifiedthat Project Engineer Jim McQueen told himduring a meeting that, although Zachry hadsought an extension of time due to a concreteshortage, the Port was denying the timeextension, [*53] but would not charge Zachrypenalties "since the [crane ship from China]ha[d] been delayed in its arrival time" and

2016 Tex. App. LEXIS 13306, *50


"there were no damages done."

The Port argued that testimony about thisemail, as well as the email itself, opened thedoor to evidence of its harms/losses that hadbeen excluded pre-trial. The trial court agreedthat Zachry had opened the door to evidenceof harms/losses, later clarifying by a writtenorder that Zachry had opened the door to thisevidence "to a degree" and only up to the datethat the Port notified Zachry that it would becharging liquidated damages, i.e., May 15,2006. However, in this same order, the trialcourt concluded that, under Texas Rule ofEvidence 403, "any probative value of injectingall of the evidence of alleged harms into thetrial would be substantially outweighed by thedanger of (1) unfair prejudice to Zachry, and(2) considerations of undue delay."

The Port complains about both the trial court'spre-trial ruling excluding evidence of itsharms/losses and the trial court's Rule 403ruling during trial. With this factual backgroundin mind, we consider each of these issues inturn, bearing in mind that HN9 we apply anabuse of discretion standard to the question ofwhether a [*54] trial court erred in anevidentiary ruling. U-Haul Int'l, Inc. v. Waldrip,380 S.W.3d 118, 132 (Tex. 2012) ("Evidentiaryrulings are committed to the trial court's sounddiscretion."). Further, even if the trial courterred in its evidentiary ruling, "reversal is onlyappropriate if the error was harmful, i.e., itprobably resulted in an improper judgment." Id.

B. Pre-trial Exclusion

The Port challenges the pre-trial exclusion ofthis evidence in its fifth issue. Our Rules ofCivil Procedure provide that HN10 a party mayrequest disclosure of "the legal theories and, ingeneral, the factual bases of the respondingparty's claims or defenses" or "the amount andany method of calculating economicdamages." Tex. R. Civ. P. 194.2(c), (d); seealso Tex. R. Civ. P. 194.6 cmt. 2 (explaining

that a defendant in a negligence suit involvinga car wreck "would be required to disclose hisor her denial of . . . any basis for contesting the[plaintiff's] damage calculation"). Further,

[a] party who failed to make, amend, orsupplement a discovery response in atimely manner may not introduce inevidence that material or information thatwas not timely disclosed . . . unless thecourt finds that:

(1) there was good cause for the failure totimely make, amend, or supplement thediscovery response; or

(2) the failure [*55] to timely make, amend,or supplement the discovery response willnot unfairly surprise or unfairly prejudicethe other parties.

Tex. R. Civ. P. 193.6(a). HN11 The partyseeking to introduce the evidence bears theburden of establishing good cause or lack ofunfair surprise or unfair prejudice. Tex. R. Civ.P. 193.6(b). Finally, it is within the trial court'sdiscretion to determine whether the partyoffering the evidence has abided by theappropriate disclosure rule. Cf. Sharp v.Broadway Nat'l Bank, 784 S.W.2d 669, 671(Tex. 1990) (per curiam) ("However, if the trialcourt finds that the party offering the testimonyhad good cause for failing to supplement, itmay, in its discretion, admit the testimony.")

The Port claims that the trial court "misread"Zachry's interrogatory and the Port's response.The Port urges that its reference to "offset" inits disclosure and later interrogatory responsequantifying its harms/losses were sufficientlytimely such that the trial court "wrongly"excluded this evidence. Finally, the Portsuggests that neither Zachry's interrogatorynor the Port's response mentionedproportionality or limited the relevance of thequantified harms/losses to proportionality ofthe liquidated damages.

2016 Tex. App. LEXIS 13306, *53


But we do not examine these pleadings in avacuum. Despite the Port's assertions [*56]that neither Zachry's interrogatory nor thePort's response mention liquidated damages, itis clear from the context of the pleadings atissue that the Port was quantifying its allegeddamages in an effort to establishproportionality to the liquidated damages it hadwithheld. Further, as the trial court stated in itsorder, the Port did not detail the $8.5 million ofactual damages it sought as an offset until July2009, months past the January 2009 discoverydeadline. And as the trial court opined, thePort was on notice well before the discoverydeadline that Zachry was seeking to have theliquidated damages provision invalidated. Weadditionally note that the Port admittedly wasaware of the amounts and categories of itsalleged actual harms/losses before thediscovery deadline.

In light of the foregoing, we cannot say the trialcourt abused its discretion in concluding thatthe Port did not meet its burden to establishgood cause or the lack of unfair surprise orunfair prejudice. See Tex. R. Civ. P. 193.6(b);Perez v. Williams, 474 S.W.3d 408, 420-21.We overrule the Port's fifth issue.

C. Trial Exclusion of Evidence

The Port contends in issue six that the trialcourt's exclusion of this harms/loss evidenceafter Zachry "opened the door" to this [*57]evidence "skewed the trial on two of four [nodamages for delay] 'exceptions'—bad faith andarbitrary/capricious." The Port asserts that atrial court must admit "open the door" evidencewithout performing a Texas Rule of Evidence403 balancing test, relying on Horizon/CMSHealthcare Corp. v. Auld, 34 S.W.3d 887, 905-07 (Tex. 2000). Yet no Rule 403 analysis wasperformed in Auld, contrary to the Port'scontention. See id. Here, the trial courtperformed a Rule 403 balancing analysis. Thetrial court articulated a basis for its Rule 403

reasoning, including but not limited to theabsence of any basis to relieve the Port of theprior discovery sanction or to compel Zacharyto cross examine witnesses on damages forwhich it had had no discovery opportunity—allwith little probative value. The Port has notoffered any substantive analysis or cited anyappropriate authority concerning the proprietyof the trial court's analysis.23

In short, the Port has failed to establish thatthe trial court's exclusion of this evidence,even if erroneous, probably resulted in animproper judgment. See U-Haul Int'l, Inc., 380S.W.3d at 132; see also Tex. R. App. P.44.1(a). Under these circumstances, the Port'ssixth issue is overruled.

VI. No-Damages-for-Delay Fraud Instruction

The Port urges in its seventh issue24 that thefraud definition included in the no-damages-for-delay portion [*58] of the jury charge waserroneous because it permitted the jury to findfraud based on reckless, rather thanintentional, behavior. The Port complains thatthe type of fraud at issue—a promise of futureperformance made with no intent to perform—must be intentional, not reckless. Yet theSupreme Court explicitly held, "The chargecorrectly described the misconduct that cannotbe covered by a no-damages-for-delayprovision." Zachry Constr. Corp., 449 S.W.3dat 117. The Port's argument ignores the law-of-the-case doctrine. HN13 Under this

23 And the Texas Court of Criminal Appealshas held, in considering the very same rules ofevidence, that HN12 "even if a party opens thedoor to rebuttal evidence, the trial judge stillhas the discretion to exclude the evidenceunder Rule 403." Hayden v. State, 296 S.W.3d549, 554 (Tex. Crim. App. 2009).24 This issue is not presented in the Port's"issues presented" section of its brief, but isurged in the Port's argument section.

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doctrine, a decision rendered in a formerappeal of a case is generally binding in a laterappeal of the same case. Paradigm Oil, Inc. v.Retamco Operating, Inc., 372 S.W.3d 177, 182(Tex. 2012) (citing Briscoe v. Goodmark Corp.,102 S.W.3d 714, 716 (Tex. 2003)).

We are bound by the Texas Supreme Court'sexpress holding that the charge "correctlydescribed the misconduct that cannot becovered by a no-damages-for-delay provision."Thus, this issue is without merit, and weoverrule it.

VII. Apparent Authority Instruction

In issue eight, the Port raises variouschallenges to the trial court's apparentauthority instruction to the jury, including thatZachry failed to plead that CH2M Hill actedwith the Port's apparent authority.25 At bottom,if Zachry pleaded apparent authority, then thetrial court did not err in instructing thejury [*59] on this matter so long as it wasraised by the evidence. See Tex. R. Civ. P.278 ("The court shall submit the questions,instructions and definitions in the formprovided by Rule 277, which are raised by thewritten pleadings and the evidence."). The Portdoes not assert that this issue was not raisedby the evidence. Indeed, the Port's ChiefEngineer DeWolf testified that he haddesignated CH2M Hill to be his"representative" in exchanging information withZachry. Other evidence established that thePort expected Zachry to rely on CH2M Hill'scommunications, that CH2M Hill was DeWolf'srepresentative, that CH2M Hill was the Port'sprimary contact with Zachry, and that thePort's executives treated CH2M Hill like thePort's own staff.

25 Importantly, as noted above, nothing on theface of the R&R order indicates it was issuedby CH2M Hill; instead, it bears the seal of thePort of Houston.

We thus examine Zachry's pleadings todetermine whether it sufficiently pleadedapparent authority, bearing in mind that thetrial court stated on the record that Zachrypleaded apparent authority. Zachry pleadedthat the Port "expressly charged anddesignated its Construction Manager, CH2M-Hill, to act on its behalf on this critical cutoff-wall issue." Zachry additionally referred to theCH2M Hill as the Port's designated agent.HN14 The purpose of pleadings is to giveadversaries notice [*60] of each party's claimsand defenses, as well as notice of the reliefsought. Perez v. Briercroft Serv. Corp., 809S.W.2d 216, 218 (Tex. 1991). Generally, in theabsence of special exceptions, a petition willbe construed liberally in favor of the pleader.Roark v. Allen, 633 S.W.2d 804, 809 (Tex.1982). The Port did not specially except toZachry's pleadings; thus Zachry's pleadingsmust be construed liberally.

Although Zachry did not use the term"apparent authority," Zachry's allegation issufficient to give notice to the Port that it faceda claim that CH2M Hill had apparent authorityto act on the Port's behalf. See Tex. R. Civ. P.45; see also Iron Mountain Bison Ranch, Inc.v. Easley Trailer Mfg., Inc., 42 S.W.3d 149,157 (Tex. App.—Amarillo 2000, no pet.). HN15The distinguishing factor between actual andapparent authority is to whom such authority iscommunicated: "An agent's authority to act onbehalf of a principal depends on somecommunication by the principal either to theagent (actual or express authority) or to thethird party (apparent or implied authority)."Gaines v. Kelly, 235 S.W.3d 179, 182 (Tex.2007). If the Port questioned what was beingpleaded, it had the option of speciallyexcepting and having the pleading clarified.See Tex. R. Civ. P. 91.

In sum, we cannot conclude that the trial courtabused its discretion in determining thatZachry adequately pleaded apparent authority,

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especially in light of the Port's failure tospecially except to Zachry's petition. Wethus [*61] overrule the Port's eighth issue.

VIII. Attorney's Fees

In its ninth issue, the Port asserts that it isentitled to attorney's fees because Zachry'sR&R claim "should be rendered." Because wehave determined that Zachry's R&R claimshould not be reversed and rendered, there isno basis for the Port's attorney's fee claim.Accordingly, we overrule the Port's ninth issue.

IX. Zachry's Pass-Through Damages

In January 2008, Zachry reorganized. Thework on this Contract going forward wasperformed by a new Zachry entity, which theparties refer to as the "Sub," a term we willadopt for ease of reference.26 The jury found,in Question No. 5, that $8,578,712 of the$18,602,697 R&R damages were costsincurred by the Sub. In its tenth issue, the Portcontends that Zachry cannot recover thisamount because (1) Zachry did not own theclaim for these damages; (2) Zachry cannotrecover these damages as a purported "pass-through" claim;27 (3) Zachry failed to establish

26 In 2007, the Sub was formed as ZCCCorporation, Zachry took a new name (ZachryIndustrial, Inc.), and the Sub changed its nameto Zachry Construction Corporation (Zachry'sformer name). In April 2009, Zachry enteredinto the subcontract with the Sub, but thesubcontract was effective January 1, 2008—the date the Sub began performing Zachry'sobligations under the Contract. It is undisputedthat the Port never consented to Zachryassigning the Contract to the Sub. But, thecontract between Zachry and the Sub—theManagement Services Agreement—providesthat the contract was not and had not beenassigned to the Sub, and Zachry remainedfully liable to the Port under the terms of theContract.

its liability to the Sub for these damages; and(4) charge error tainted the jury's finding toQuestion No. 5. We consider those argumentsnecessary to resolve this issue next.

A. Zachry May [*62] Recover theseDamages as a Pass-Through Claim

The Port contends Zachry cannot assert apass-through claim because it hired the Subafter PHA's breach, and thus the Port's"breach . . . did not cause Zachry to breach thesubcontract." But nothing in the seminal caseapproving pass-through agreements requires abreach by Zachry:

We hold that HN16 Texas recognizespass-through claims. Consequently, if thecontractor is liable to the subcontractor fordamages sustained by the subcontractor,pursuant to a pass-through agreement thecontractor can bring an action against theowner for the subcontractor's damages. Ifthe owner contests the contractor's pass-through suit on grounds that the contractoris not liable to the subcontractor for theclaimed damages, the owner bears the

27 A pass-through claim is a claim (1) by aparty who has suffered damages (in this case,the Sub), (2) against a responsible party withwhom it has no contract (here, the Port); and(3) presented through an intervening party(Zachry) who has a contractual relationshipwith both. Interstate Contracting Corp. v. Cityof Dallas, 135 S.W.3d 605, 610 (Tex. 2004)(citing Carl A. Calvert, Pass Through Claimsand Liquidation Agreements, ConstructionLawyer, Oct. 18, 1998, at 29; 3 Bruner andO'Connor on Construction Law § 8:51 (2003))."Instead of one lawsuit between asubcontractor and general contractor andanother between the general contractor andthe owner, pass-through claims permit acontractor to pursue its subcontractor's claimsdirectly against the owner." Id. (citing 3 Brunerand O'Connor on Construction Law § 8:51).

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burden of proof.

Interstate Contracting Corp. v. City of Dallas,135 S.W.3d 605, 607, 619-20 (Tex. 2004).Thus, the court in Interstate Contractingrequired only that Zachry "remain liable to thesubcontractor for damages sustained by thesubcontractor." Id. at 619. The InterstateContracting court also recognized HN17 ageneral contractor's decision to hire asubcontractor to perform work necessitated bythe owner's breach does not preclude thecontractor from recovering the cost for the sub.Id. at 611. "Otherwise, the owner could [*63]receive a windfall because the subcontractorlacked privity with the owner and thecontractor lacked standing to sue the owner fordamages suffered by the subcontractor." Id. at615-16.

Zachry established its continuing liability to theSub for the costs the jury assessed. In theManagement Services Agreement ("MSA")between Zachry and the Sub, Zachry promised(1) "to pay to [the Sub] the ReimbursableCosts" the Sub incurred while performingservices for Zachry, and (2) to pay to the Subany payments it received from the Port. In thePass-Through Agreement between the two,Zachry "agree[d] . . . it is liable to [the Sub], topresent the [the Sub's] Claims and remit anyrecovery from the Port of Houston to [the Sub],in accordance with the terms of thisAgreement." The burden therefore shifted tothe Port to negate this continuing liability:HN18 "If the owner disputes that thisrequirement [of continuing liability] has beenmet, it bears the burden of proving, as anaffirmative defense, that the pass-througharrangement negates the contractor'sresponsibility for the costs incurred by thesubcontractor." Id. at 619-20.

Referencing section 3.2 of the MSA, the Portasserts Zachry might not remain liable to theSub by speculating that owners on other MSA

contracts [*64] might have paid Zachry morethan the Reimbursable Costs on theircontracts. This section provides, in pertinentpart,

Zachry shall have no obligation to pay orreimburse [the Sub] for any ReimbursableCosts in excess of the Contract Payments.Therefore, if the Contract Paymentsreceived by [the Sub] are less than theReimbursable Costs, Zachry will have noliability for any such shortfall. If theContract Payments exceed theReimbursable Costs, the parties shallconfer and agree upon a mutuallysatisfactory allocation of any such excessamounts between the Parties consistentwith the intents and purposes of theCorporate Restructuring.

According to the Port, any excess paymentsfrom any other contracts controlled by theMSA would limit Zachry's liability forreimbursable costs for the Port Contract. Butthe MSA unambiguously states, "Zachryagrees to pay to [the Sub] the ReimbursableCosts." The Port reads section 3.2 of the MSAto limit Zachry's obligation to pay reimbursablecosts when contract payments exceedreimbursable costs. But this section does notsuggest that allocation of "such excessamounts" limits any reimbursable costs Zachrymust pay to the Sub on other contracts.Finally, the Pass-Through Agreement [*65]explicitly requires Zachry to "remit anyrecovery from the Port of Houston" to the Sub.Thus, there is simply nothing in any of theagreements that limits Zachry's liability to theSub, and the Port has not born its burden ofproving, as an affirmative defense, that thePass-Through Agreement negated Zachry'sresponsibility for the costs incurred by the Sub.See id.

Regarding the Port's assertion that Zachryprovided no evidence that it had any liability to

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the Sub, Zachry's vice president, John Abiassi,confirmed Zachry's continuing liability to theSub. Abiassi explained that Zachry was liableto the Sub for "any costs incurred . . . afterJanuary 1 of 2008." Abiassi further testifiedthat Zachry agreed to reimburse the Sub forany costs the Sub incurred after January 1 andto remit any claims from this lawsuit that areassociated with those costs. Thus, there ismore than a scintilla of evidence that Zachryhad continuing liability to the Sub for the Sub'scosts incurred after January 1, 2008. See Cityof Keller, 168 S.W.3d at 810.

B. Governmental Immunity Does Not Barthe Pass-Through Claims

Finally, the Port further asserts, in twosentences (excluding citations), thatgovernmental immunity bars Zachry's pass-through [*66] claim: "[The Port] has immunityfor breach of a contract to which [the Port] isnot a party. Before enactment of Chapter 271,the Court in Interstate said immunity may bar apass-through claim against the government."Yet the Texas Supreme Court, in InterstateContracting, explained why it specificallychose not to address the issue of sovereignimmunity. Id. at 620 ("Although the questionscertified do not limit our answers, we decline toextend our answers in this case to the issue ofsovereign immunity, which is well beyond thescope of the questions certified. Doing sowould require us to venture into the facts ofthis particular case and analyze the merits ofthe parties' claims at issue before the FifthCircuit Court of Appeals, rather than provideanswers solely as to the status of the Texaslaw on the questions asked."). Thus, wedisagree with the Port's assertion that the courtin Interstate Contracting stated thatgovernmental immunity may bar a pass-through claim.

Further, our sister court in San Antonio wassquarely presented with the issue of whether

governmental immunity bars a pass-throughclaim in City of San Antonio v. Valemas, Inc.,No. 04-11-00768-CV, 2012 Tex. App. LEXIS4646, 2012 WL 2126932 at *1-7 (Tex. App.—San Antonio June 13, 2012, no pet.) (mem.op.). The San Antonio court, [*67] after athorough analysis, determined that HN19governmental immunity did not bar the pass-through claim of the subcontractor. See 2012Tex. App. LEXIS 4646, [WL] at *7. Indetermining this issue, the San Antonio courtexamined the language of section 271.152 ofthe Local Government Code, as well asseveral other relevant provisions of Chapter271. See 2012 Tex. App. LEXIS 4646, [WL] at*5-6. After examining the language of thestatutory provisions, the San Antonio courtstated, "We find nothing in any of thesesections to show the Legislature intended toexclude pass through claims from the waiverprovision in section 271.152." 2012 Tex. App.LEXIS 4646, [WL] at *6. The court of appealsthen went on to consider the legislative historyand bill analysis of section 271.152. See 2012Tex. App. LEXIS 4646, [WL] at *6. The courtnoted that the legislative history "stronglysuggests" the Legislature intended to enact a"broad waive for local governmental entities inthe contractual setting." Id. And the billanalysis suggested that "enactment of section271.152 was based on the Legislature'srecognition of the inherent unfairness inallowing governmental entities to enter intocontracts, but then avoid [their] obligationsunder such contracts by claiming immunity."Id.

Ultimately, the San Antonio court explained:

It is common knowledge that when a localgovernmental entity enters into a contractfor extensive renovations orconstruction, [*68] the general contractorwith whom it contracts will subcontract withothers. If a local governmental entity isimmune from pass through claims,

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requiring subcontractors to sue the generalcontractor to recover rather than rely onthe general contractor to pursue suchclaims, smaller subcontractors will be lesslikely to risk entering such agreements-knowing that in the event the contractor isunable to pay because of non-payment bythe governmental entity they will be forcedto engage in expensive litigation, the costof which they may not be able to bear, orsimply write the matter off as a loss. Thisputs subcontractors into the same positionas contractors, and as recognized by thesupporters of the bill that proposed section271.152 in the context of generalcontractors, will make many highlyqualified subcontractors, especially smallbusinesses, hesitant to enter into suchcontracts. This will discourage anddisadvantage a diverse range of biddingsubcontractors and limit the choices ofgeneral contractors in direct opposition towhat the bill was intended to do.

Accordingly, we hold thatHN20 just as it isinconsistent with the purpose of section271.152 to construe it to deny waiver toassignees of those who enter [*69] intocontracts subject to subchapter I, so is itinconsistent to deny waiver to passthrough claims brought by a contractoragainst a local governmental entity on asubcontractor's behalf. To hold otherwisewould subject subcontractors to the samerisk of non-redressable breach the statuesought to eliminate, resulting insubcontractors suffering the sameproblems once suffered by generalcontractors prior to the enactment ofsection 271.152.

Id. at *6-7. We agree with the San Antoniocourt's rationale and likewise hold thatgovernmental immunity does not bar the pass-through claim at issue here. Cf. GalvestonIndep. Sch. Dist. v. Clear Lake Rehab. Hosp.,

L.L.C., 324 S.W.3d 802, 810 (Tex. App.—Houston [14th Dist.] 2010, no pet.) ("[W]hen agovernmental entity and a contracting partyenter into a contract subject to subchapter Iand denominate a third-party beneficiary ofthat contract, the third-party beneficiary's claimfor breach of contract falls within the waiver ofimmunity authorized under section 271.152.").

For the above-described reasons, we overrulethe Port's tenth issue in its entirety.28 See Tex.R. App. P. 47.1.

X. Conclusion

We have addressed and overruled all theissues the Port raised that are necessary tothe disposition of this appeal. See Tex. R. App.P. 47.1. For the foregoing reasons, we affirmthe judgment of the trial court.

/s/ Sharon McCally

Justice

End of Document

28 The remainder of the Port's arguments inthis section of its brief are contingent upon oursustaining one of the issues addressed supra.

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Port of Houston Auth. of Harris Cnty. v. Zachry Constr. Corp. · 2017-02-07 · Neutral As of:...

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Transcript of Port of Houston Auth. of Harris Cnty. v. Zachry Constr. Corp. · 2017-02-07 · Neutral As of:...